Defendant's failure to establish reasonable defense against plaintiff's claim, leading to striking out of defense.

Kenneth St James JC:

Prelusion

[1] The Appellant is the Defendant in the Sessions Court suit. The Respondent is the Plaintiff. I will refer to the parties as they are in the Sessions Court-Plaintiff and Defendant.

[2] The Plaintiff is a building contractor. The Defendant is the owner of a property known as Lot 10010, s 6, Georgetown (Property).

[3] The Defendant hired the Plaintiff to build a three-storey house on the Property for the price of RM1.65m. The contract between the parties takes the form of a letter of award dated 28 December 2020 (LOA).

[4] After the LOA, between January 2021 and January 2022, the Plaintiff issued seven Progress Bills, for a total of RM836,100.00. The Defendant paid the Plaintiff on 18 occasions. The Defendant paid a total of RM434,000.00. The Plaintiff applied for Judgment for the amount of the difference-RM402,100.00.

[5] The Defendant's Defence is that:

(1) the Plaintiff's Progress Bills should have been, but were not, supported by Architect's Certificates;

(2) the Plaintiff accepted the Defendant's payments even after the suit was filed;

(3) the Plaintiff is estopped from filing this suit, as the Plaintiff has waived their claim.

[6] The Plaintiff's reply is that:

(1) the LOA does not require Architect's Certificates to support the Plaintiff's progress claims. It is not a term of the LOA;

(2) this issue of the requirement for Architect's Certificates is an afterthought;

(3) even after this suit was filed, the Defendant made three further payments to the Plaintiff.

[7] The Plaintiff files an Application to strike out the Defendant's Defence and accordingly enter Judgment against her. The Sessions Court allowed the Striking Out Application and Judgment was entered against the Defendant. She appeals to the High Court.

[8] Should the Defendant's Appeal be allowed? Put differently in first-instance terms, should the Defendant's Defence be struck out and Judgment entered against her?

A Brief Review Of The Law On The Order 18 Rule 19 Striking Out Procedure

[9] My starting point is to allude to the difference in the applicable adjectival principles between the striking out procedure under O 18 r 19 and the summary judgment procedure under O 14 r 1 of the Rules Of 2012.

[10] In an application for summary judgment under O 14 r 1, the plaintiff has to demonstrate that the defendant has no defence to the claim; that there are no triable issues ie, that there are no issues of fact that requires the testimony of witnesses in a trial process before those issues can be determined: Ng Hee Thoong & Anor v. Public Bank Bhd, [1995] 1 MLJ 281 .

[11] On the other hand, in an application to strike out a pleading (here: the Defendant's Defence) under O 18 r 19, which is the subject Application before me, the Plaintiff here has to demonstrate that theirs is a "plain and obvious" case that the summary procedure under O 18 r 19 should be used to determine the dispute between the parties. Also, the O 18 r 19 summary procedure should only be utilised when the Defendant's Defence is "on the face of it obviously unsustainable": Bandar Builder Sdn Bhd v. United Malayan Banking Corporation , 1993 MarsdenLR 99 .

[12] In other words, I am not considering whether there are "triable issues", but rather whether it is "plain and obvious" that the Defendant's Defence is "obviously unsustainable".

[13] Another principle that I am bound to follow is that when I am asked to use the O 18 r 19 summary procedure to strike out a pleading, I am not to use it